Constitution Check: Could the president legally order a drone strike inside the U.S.?

Lyle Denniston looks at due process and the public debate over the president’s authority to use drones as a weapon within the U.S.

The statements at issue:

“The Senate has the power to restrain the executive branch–and my filibuster was the beginning of the fight to restore a healthy balance of powers. The president still needs to definitively say that the United States will not kill American non-combatants. The Constitution’s Fifth Amendment applies to all Americans; there are no exceptions. … I hope my efforts help spur a national debate about the limits of executive power.”

– Senator Rand Paul, Kentucky Republican, in an opinion article in the Washington Post on March 10, discussing his goals in a nearly 13-hour speaking marathon March 6 and 7 on the Senate floor over the Obama administration’s policy on lethal drone strikes.

“Dear Senator Paul: It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”

– Attorney General Eric H. Holder, Jr., in a letter on the morning of March 7.

“The president has not and would not use drone strikes against American citizens on American soil. On the broader question, the legal authorities that exist to use lethal force are bound by and constrained by the law and the Constitution. The issue here isn’t the technology. The method does not change the law. … Whether the lethal force in question is a drone strike or a gun shot, the law and the Constitution apply in the same way.”

– White House Press Secretary Jay Carney, in his daily briefing for news reporters on the afternoon of March 7.

We checked the Constitution, and…

On August 17, 1787, at the Constitution Convention, the delegates were debating a draft of the founding document that would have given Congress the power “to make war.” At a critical point, according to James Madison’s notes, he and Elbridge Gerry “moved to insert ‘declare,’ striking out ‘make’ war, leaving to the executive the power to repel sudden attacks.” Moments later, that motion passed, 7 to 2.

The sentiment seemed to be that speed in mounting a response was essential if America were to be suddenly attacked, and Congress would be too slow. So war powers were split, with Congress gaining the authority to commit the nation to a war against another nation, and the president holding the authority to act speedily in response to an invasion.

It is no surprise, then, that presidents ever since have assumed emergency powers in the face of a grave, immediate threat to national security. Abraham Lincoln, Franklin Roosevelt, Harry Truman, George H.W. Bush, George W. Bush, and Barack Obama–all have provided examples.

But, from time to time, that authority has been challenged, as Senator Paul did at length last week, because of the perceived need to restore some constitutional balance to war-making.

The constitutional reality is that White House Press Secretary Carney was right, in saying that the particular technology used to respond to a major threat does not change what is legally allowed or not. But the question for today’s policymakers is just what does the Constitution allow and, when it comes to the policy on the use of “weaponized drones,” the policymakers seem very far from consensus.

Much of the debate in Washington in recent weeks over the use of drones to kill individuals believed to be plotting terrorist acts against the U.S. has been focused on targeting of American citizens overseas. But Senator Paul, and the small, bipartisan group of senators who supported his filibuster, sought to shift the focus drones inside the U.S.

It is not absolutely clear that these senators actually expected the government to use such deadly devices against Americans on American soil, especially if they were not immediately plotting acts of terrorism. But bringing the issue to the homeland had a way of crystallizing the overall debate.

The filibuster put a very visible focus upon the constitutional notion of “due process,” and whether that guarantee under the Fifth Amendment will operate as a restraint upon the executive branch’s profoundly controversial decision to kill an identified individual–especially a U.S citizen–without even bringing criminal charges, let alone getting a guilty verdict and a court-imposed sentence of death.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Complicating the debate, of course, is that the administration claims that those who are actively preparing to attack the U.S. homeland are, legally, like enemy soldiers in a combat zone, and–under the accepted laws of war–they may be killed without legal process. Does that same logic apply to a suspected terrorist, an American, plotting terrorism inside the U.S.?

Although Senator Paul spent much of his debate focusing on possible drone strikes against “American non-combatants,” the hard question is whether drones could be used constitutionally inside this country when the targeted American was, in fact, suspected of being a plotting terrorist.

The attorney general answered the question, though, as Senator Paul asked it–that is, whether a drone would be used against an American “not engaged in combat on American soil.” That, of course, was a question to which a “no” answer was easy and obvious.

The White House press secretary, while citing the attorney general’s letter, actually went further, and declared without qualification that “the president has not and would not use drone strikes against American citizens on American soil.” And, in elaborating on that theme, Carney seemed to be saying that this is what the law and the Constitution require.

These exchanges, though, very likely are only the beginning, not the conclusion, of the debate over constitutional limits on drone strikes. It may be, as time and the debate go on, that there will emerge more clarity. If so, that is the kind of constitutional discussion that can enrich public discourse.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.